Authors Guild: Wait for Congress to Sort Out Google Scanning

In its final brief before oral arguments, the Authors Guild this week closed by imploring Judge Denny Chin to shoot down Google's book scanning program, and let Congress ask questions later.

“The fair use doctrine is not designed to address the enormity of Google’s infringement,” Authors Guild attorneys argue, calling the legality of the book scanning program “a cutting edge” technological issue best left to Congress to address. “Until Congress addresses these critically important issues, courts must defer to the choices already made by Congress,” the brief argues, and Chin should reject “Google’s unilateral and profit-driven effort to upset the established balance between copyright owners and users.”

The call for the court to punt on the fair use issue comes in the final round of summary judgment reply briefs in the long-running lawsuit against Google over its library scan plan. In its filings, Google reiterates that its program falls well within the bounds of fair use, and argues that there is no evidence of any harm, and significant public benefit to the program.

“The undisputed evidence shows that Google’s scanning, indexing, and snippet display are transformative uses with no negative effect on the market for or value of any book,” Google attorneys conclude. “They provide a tool for research and scholarship, and make books discoverable in a way that was never before possible.”

The Guild’s final plea for the court to reject Google’s program in anticipation of Congressional action looms as a long shot bet—and, in fact, doubles down on a strategy that was rejected last year by Judge Harold Baer in the Authors Guild’s parallel case against the HathiTrust, in which Baer found the book scanning carried out by Google to be fair use.

In its brief, the Authors Guild seeks to further portray Google’s scanning program as something of a Trojan horse.

“Google portrays itself as an altruistic provider of ‘new information and new insights’ and falsely depicts plaintiffs as luddites who seek to destroy all the good Google purportedly has done,” the Authors Guild argues. “Google completely ignores that it is the authors, including plaintiffs in this case, who created the works that Google has copied in order to enhance its own search engine and related enterprises.”

In pressing its fair use case, Google is “downplaying the overwhelmingly commercial nature” of its Library Project, the Authors Guild brief states, and obscuring the fact that “the unauthorized use of copyrighted works” has helped it dominate the search engine market.

“For all intents and purposes, [Google] paid libraries for the right to digitize and copy much of our nation’s literary heritage and then used the resulting digital library to gain a competitive advantage over search engine competitors,” the Guild posits. “Google has completely disregarded the exclusive rights of copyright holders to choose whether, where and how to permit the copying and display of their works.”

Google, meanwhile, reiterates that its program has not harmed any author, and in fact has helped them. Further, they insist that the Authors Guild mischaracterizes the copyright law.

The Authors Guild case “boils down to the assertion, restated or implied many times in many ways, that authors have a moral right, as opposed to an economic right, to control the uses of their works,” Google has argued. “United States copyright law says otherwise.”

It remains to be seen how Judge Denny Chin will view the fair use questions now before him. But it is highly unlikley he'll let the anticipation of congressional action dissuade him from ruling on the merits.

"The Authors Guild has an an uphill fight with the 'leave it to Congress' argument," observes James Girmmelmann, professor of law at the University of Maryland and a PW contributing editor. "That's an argument in favor of the status quo, because it asks judges to step back and keep things as they are until Congress can make any needed changes. But eight years into the case, the Google Books program is the status quo. By not asking for a preliminary injunction, and by pursuing the settlement, and by litigating at a leisurely pace in general, the Guild has missed that opportunity."

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